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Forget all your legal training. Pretend you are a juror in a DWI case.

Facts. The following facts were established at trial:

The defendant was stopped at a checkpoint. The officer smelled alcohol and defendant admitted that he had consumed two glasses of wine earlier in the evening.

No field sobriety tests were administered, and the defendant was arrested. He blew into the breath testing machine, which registered a result of .08.

The officer asked the defendant to blow a second time. The defendant appeared to blow, but the result did not register. The officer believed that the defendant intentionally refused to provide a second sample and terminated testing.

The defendant testified that he did not refuse testing, but was unable, due to asthma, to blow sufficiently hard a second time to register a result.

The officer testifies on cross-examination that he occasionally has seen breath test results vary, with the second test being lower than the first.

The defendant’s attorney argued that the result of defendant’s second test, had he been able to provide a sufficient breath sample, easily could have been a .06 or lower. He insists that the State has failed to prove that the defendant was driving while impaired.

Jury Instructions. The judge tells the jury that, to find the defendant guilty of impaired driving, the State must prove three things beyond a reasonable doubt:

First, that the defendant was driving a vehicle;

Second, that the defendant was driving that vehicle upon a street within the State;

And, third, that at the time the defendant was driving that vehicle the defendant had consumed sufficient alcohol that at any relevant time after the driving the defendant had an alcohol concentration of 0.08 or more grams of alcohol per 210 liters of breath.

The judge further advises: “The results of a chemical analysis are deemed sufficient evidence to prove a person’s alcohol concentration.”

She tells you that if you find these three elements beyond a reasonable doubt, it is your duty to return a verdict of guilty. She says that if you have a reasonable doubt about any of these factors, your duty is to return a verdict of not guilty.

Deliberations. The jury begins to discuss the case. You harbor some doubt, in light of the evidence, about whether the defendant’s alcohol concentration was a .08. But you aren’t sure whether that issue is before you. On the one hand, the judge has told you that the .08 result “shall be deemed sufficient evidence to prove a person’s alcohol concentration.” But she also has said that if you have a reasonable doubt, your duty is to return a verdict of not guilty. Your fellow jurors disagree about how to reconcile these statements.

Now use your legal training to help out your confused-juror-self.

Shall be deemed. The court of appeals in State v. Narron, 193 N.C. App. 76 (2008), held that the provision of G.S. 20-138.1(a)(2) stating that “[t]he results of a chemical analysis shall be deemed sufficient evidence to prove a person’s alcohol concentration,” does not establish an unconstitutional presumption. Indeed, the court explained that the provision does not establish a presumption at all. Instead, it “simply states the standard for prima facie evidence of a defendant’s alcohol concentration.” Narron, 193 N.C. App. at 83. “In other words,” the Narron court explained, “the statute simply authorizes the jury to find that the report is what it purports to be—the results of a chemical analysis showing the defendant’s alcohol concentration.” Id. at 84.

Did the judge err? Given that the “shall be deemed sufficient evidence” language merely establishes the standard for prima facie proof, did the judge err by restating the provision to the jury in her instructions? The language appears in the pattern jury instructions for impaired driving, see North Carolina Pattern Jury Instructions for Criminal Cases, Vol. III, N.C.P.I.—Criminal 270.00 (June 2011), and the trial court in Narron gave such an instruction. The court of appeals in Narron stated that while “there was no need for the trial court to call to the jury’s attention that the chemical analysis was the basis of the trial court’s determination that the State had presented prima facie proof of the element” since, “[i]f a case is submitted to the jury, then by definition, the court has determined that the State presented ‘sufficient evidence to prove’ each of the elements of the offense.” Id. at 85. However, Narron found no prejudice to the defendant in the court’s statement to the jury and concluded that the instructions adequately informed the jury of the law.

The court of appeals relied upon Narron in determining that giving such an instruction was not error in State v. Langley, 731 S.E.2d 862 (N.C. App. September 18, 2012) (unpublished op.). And, in State v. Fulton, 731 S.E.2d 274 (N.C. App. August 21, 2012) (unpublished op.), the court rejected the defendant’s contention that he was entitled to a special instruction explaining the that the results do not create a legal presumption and that a jury is not compelled to return a verdict of guilty where a chemical analysis generates a result of .08 or greater.

How should the judge instruct the jury? Even if it is not legal error to give the pattern instruction, is that the best way to instruct jurors in a per se impaired driving case? Tell us how you think jurors ought to be instructed.

How should jurors be instructed in a per se DWI case?

According to the pattern instructions.

The pattern instructions and a special instruction should be given.

According to the pattern instructions, with the exception of the "shall be deemed" provision, which should not be part of the instructions.

4 comments on “Jury Instructions for DWI”

The Court should always omit the statutory language “shall be deemed sufficient” as jurors tend to take this to mean they have to believe the number submitted is always correct and must be taken at face value.

further, the Court should always instruct, if requested, to additional language found in Narron and Simmons, stating that jurors are not required to find guilt simply by the number, there is no presumption created when the number is .08 or greater and that the jury can treat the number just like any other piece of evidence. It can be believed wholly, in part, or not at all.

J. Powell

June 13, 2013 at 5:02 pm

Not being an attorney, but a LEO and Chem Analyst, I would believe that the points that 1) if the defendant was able to provide a sufficient sample for one test, that he would have been able to provide the second sample, and 2) sequential test results are for the benefit of the defendant would have been brought out in court. That being said, the defendants refusal to provide a second sufficient sample actually worked against him in his case, therefore the pattern instructions should be correct.

Alex Hall

John Narron was my client and I argued it at the Court of Appeals. My entire point was to get the Court to explain WHY it is not a mandatory presumption (which would be unconstitutional). And it seems logical that if the Court had to take pages to explain to attorneys and judges why the language “shall be deemed sufficient” is not a presumption, then a few additional words in a special instruction are certainly necessary to explain to 12 lay members of a jury.